In an interesting but almost impenetrable judgment, the Court of Justice of the European Union gives some guidance on procedural protections available to those bringing challenges to EU law decisions which adversely affect them. The case is Benalla v Belgium C‑161/15.
The point that arose was a fairly obscure one. Mr Benalla, a Spanish citizen, applied for and was granted a residence certificate in Belgium as a worker. However, it seems it was alleged that the job was not real or effective in some way and the residence certificate was revoked: see paragraph 9 of the judgment. Mr Benalla was not given any notice of the revocation.
He challenged the decision and his grounds of challenge rather evolved over the course of the proceedings. Having not initially relied on the lack of notice of revocation and lost his case at the initial stage, he tried to plead the notice issue on appeal. At that point, the appeal court told him it was probably too late to raise a new point, but they referred the issue to the CJEU on the basis that EU law rights were involved.
Firstly, the court makes the point the procedural protections for EU citizens must be at least equivalent to those for those in a similar situation and that the protections must be effective. See paragraphs 23 to 25:
23 While that directive sets out a number of rules to be respected by Member States for the purpose of a possible limitation on the right of residence of an EU citizen, namely, inter alia, those set out in Articles 30 and 31 of that directive, it does not, by contrast, contain provisions concerning the detailed rules governing administrative and judicial procedures relating to a decision which results in the withdrawal of an EU citizen’s residence permit.
24 In that regard, it should be recalled that, according to the Court’s settled case-law, in the absence of EU rules on the matter, it is for the national legal order of each Member State to establish them in accordance with the principle of procedural autonomy, on condition, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness) (judgment in Eturas and Others, C‑74/14, EU:C:2016:42, paragraph 32 and the case-law cited)
25 It follows that two cumulative conditions, namely respect for the principles of equivalence and effectiveness, must be satisfied in order for a Member State to be able to assert the principle of procedural autonomy in situations which are governed by EU law.
One of the cardinal rules of immigration law is that Elspeth Is Always Right (In The End). I still struggle to see how an out of country appeal can possibly be effective in cases of sham marriage allegations, as the tribunal somehow contrived to find in the case of R (on the application of Bilal Ahmed) v Secretary of State for the Home Department (EEA/s 10 appeal rights: effect) IJR  UKUT 436 (IAC). The Court of Appeal has apparently upheld that decision, though, and declined to make a reference to the CJEU:
— Jonathan Kingham (@jonkingh) March 18, 2016
The Benalla case also raises the issue of equivalent protection. Given that under the appeals regime introduced by the Immigration Act 2014 all human rights claims generate an in-country right of appeal unless certified as clearly unfounded, there is also a rather strong argument that the procedural games played by the Home Office and entertained by the tribunal in Bilal Ahmed are irrelevant and those relying on EU law must be given an equivalent remedy. In fact, Bilal Ahmed was probably rendered redundant by the Immigration Act 2014 changes, but these changes could perhaps be argued to have retrospective effect.
See further paragraph 33 of Benalla:
33 In that regard, in order to enable the referring court to determine whether the plea alleging infringement of the right to be heard in EU law is similar to a plea alleging infringement of such a right in Belgian law, it should be noted, as the Court held in its judgment in Spain v Commission(C‑287/02, EU:C:2005:368, paragraph 37 and the case-law cited), that respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the proceedings in question. That principle requires that the addressees of decisions which significantly affect their interests should be placed in a position in which they may effectively make known their views.
As well as casting significant further doubt on Bilal Ahmed, Benalla is surely yet another nail in the coffin for Amirteymour, given that all is required to trigger effective protection is a decision that “adversely affecting” an EU citizen. The artificial distinction between a refusal of residence and a removal decision relied on by the tribunal in Amirteymour is not one that finds any recognition in EU jurisprudence.
Serious question: can anyone think of a contested issue of EU free movement law where the Upper Tribunal was ultimately proven correct?